Given the current media storm surrounding fugitive US intelligence leaker, Edward Snowden and other high profile whistleblowing cases in both the NHS and BBC, the concept of whistleblowing is receiving huge amounts of attention. This makes the amendments to whistleblowing legislation, which come into force today, all the more topical.
What are the changes?
One of the central changes is that a disclosure will not be protected unless it is, in the reasonable belief of the worker making the disclosure, "in the public interest.” Previously, an employee could argue that their employment contract had been breached - and in bringing it to the employer’s attention they would become a whistleblower. This protection was used by employees to bypass the 2 year qualifying service necessary to bring an unfair (constructive) dismissal claim. The change reflects the Government’s desire that an employee should not suffer for trying to right a wrong that is in the public interest. However what it does mean is that employees raising concerns relating to personal disputes will no longer be protected.
Another change is that a disclosure doesn’t have to be made "in good faith" to be protected. However an employment tribunal may reduce a worker's compensation by up to 25% if it appears that a protected disclosure was not made in good faith. On the face of it, this makes a whistleblower’s motive irrelevant, be it revenge or money. Yet, an employee who attempts to blow the whistle about something he or she knows to be false will fall foul of the requirement that something is within his or her ‘reasonable belief’ in the public interest.
Finally, a worker has the right not to be subjected to a detriment by another worker or agent of the employer, on the ground that he or she has made a protected disclosure. An employer will therefore be vicariously liable for any such acts or omissions committed by another worker or an agent. An employment tribunal will also be able to hold the other worker or agent liable. The employer will have a defence in tribunal proceedings if it can show that it took "all reasonable steps" to prevent the other worker from committing the act or omission of that description.
This makes it vital for employers to have effective policies on whistleblowing and bullying and harassment, as part of any ‘reasonable steps’ defence. Now may be a good time to review company policies, in light of these changes. If you would like to discuss whistleblowing and these changes in more detail, please contact a member of our employment team.
